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Martin Garbus

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Dangerous, Not Foolish: The Citizens United Case

Posted: 06/26/2012 6:22 pm

On Monday the Supreme Court reaffirmed the Citizens United Case. When I look at the Supreme Court's words and thoughts in the Citizens United Case, I think of other statements from the past, made by prominent figures, regarding controversial issues.

  • "Everything that can be invented has been invented." Charles H. Duell (United States Patent and Trademark Office), 1899;

  • "Heavier-than-air flying machines are impossible." Lord Kelvin (Royal Society of London), 1895; "Airplanes are interesting toys, but of no military value." Marshal Ferdinand Foch, 1911;

  • "I think there is a world market for maybe five computers." Thomas J. Watson (President of IBM), 1943;


"We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption;" ... "the appearance of influence or access [coming from unlimited corporate spending] will not cause the electorate to lose faith in this country."
-- Justice Anthony Kennedy in the United States Supreme Court (Citizens United v. Federal Election Commission), 2010

The first paragraph of Citizens United is just arrogant, self-interested foolishness. The second is that plus something far more dangerous.

The nine Supreme Court Justices are all wordsmiths. The five Court conservative majority did not specifically say that great amounts of money do not influence elections, and they did not specifically say that great amounts of monies cannot buy elections, and they did not specifically say that money cannot buy government officials.

To say that, in those words, would be as foolish as those quoted from history in the beginning of this piece.

So it was said by the Justices in other ways.

To plainly say what they really meant would make it clear to all of us exactly what was going to happen to this country. This could, or might, lead to a very angry if not violent reaction.

Buried in 81 pages of legal citations in Citizens United we see avoidance. We see what appears to be a deliberate attempt to confuse the fact that the Court does not say so much foolish as dangerous words.

To put clearly what the Court unclearly states, that this democracy cannot stop itself from becoming a plutocracy, a country run by and for the benefit of the wealthy, is very troublesome.

The "original intent" Justices, Clarence Thomas, Antonin Scalia and Samuel Alito, joining with Justices Roberts and Kennedy in the Citizens United majority, cannot find the words in the Constitution that say a plutocracy is what the Founders wanted. It's not so, and never has been, and so they find a different way to say that it's legal.

The 81 page decision of the Citizens United majority is so carefully articulated that it obscures who the five Justices are, what they really want, and their acceptance, perhaps desire, for a country that bears very little resemblance to the democracy we thought we had.

Martin Garbus, a First Amendment lawyer who has taught at Columbia University, is the author of a number of books on the First Amendment and the Supreme Court.

 
 
 
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